22 How. Pr. 500 | N.Y. Sup. Ct. | 1861
The power to issue the writ of ne exeat in cases of equitable cognizance still exists, and is not impaired or affected by the provisions of the Code. (Bushnell agt. Bushnell, 15 Barb., 399 ; S. C. at special term, 7 How., 389.) This case, and the principle upon which it proceeded, holding that the general provisions of the Code, (§ 178,) that no person shall be arrested in a civil action except as prescribed by that act, did not apply to cases in which the plaintiff was entitled to equitable bail, is decisive of the Question made by the defendant upon the clause in section 179 declaring that no female shall be arrested in any action except for wilful injury to person, character or property. It only applies to arrests as provided by the Code for the cause of action for which an arrest is given by that act. It simply excepts females from the operations of the provisional remedy by arrest given by the Code.
The act to abolish imprisonment for debt (Sess. Laws of 1831, p. 396) was in terms very comprehensive, declaring that “ no person shall .be arrested or imprisoned on any
Upon the ordinary mesne process in actions at law, a married woman cannot be arrested. The common law exempts her from arrest, (2 Kent’s Com., 181,) and she is entitled to be discharged from arrest on final process, if it appears that she has no separate property. (Sparks agt. Bell, 8 B. & C., 1.) But a ne exeat issues upon different principles from those which regulate the mesne process of courts of law. It issues only when a court of equity has jurisdiction, and in the enforcement of an equitable demand. It is in the nature of equitable bail, and issues only by the special order of the court, and when the party against whom it is asked is about to leave the jurisdiction of the court so that the decree of the court will be ineffectual, or the party interested in it may have to follow his adversary to another jurisdiction. It may issue in any stage of the action, and against the plaintiff or defendant, as occasion may require. (Dunham agt. Jackson, 2 Paige, 629.) It may therefore issue in any case and against any party, when the court has jurisdiction of the subject matter and of the person of the defendant. If a feme covert is exempt from the jurisdiction of the court, and cannot be bound by any decree or judgment pronounced by it, shg cannot be compelled to give the equitable bail which is the object of a ne exeat. But if a valid judgment can be pronounced against her in respect to the cause of action alleged against her, then the court can employ all the process which it is accustomed to employ to make its judgment effectual.
The charge is, that the defendant has a trust fund in her hands, to which the plaintiff is entitled ; that she is the depositary of the plaintiff’s money, which she has misappropriated, and in part converted wrongfully into a bond and mortgage which she is about to take with her from the
There is no pretence that the defendant has a separate estate or property of any kind. If receiving this money as the depositary or bailee of the plaintiff, gave her a separate estate or property in it, then it ceased to be the property of the plaintiff, and an action will not lie for that reason. If it became quasi a separate property of the wife so as to give the court jurisdiction over her in respect to it, there never would have been any doubt or difficulty in the assertion of the rights of depositors or bailors as against married women who had become depositaries or bailees. If a married woman becomes a depositary, that is, receives money or property to keep for another gratuitously, which is charged here, without the consent of her husband, the act is a mere' nullity, and no contract of deposit arises. Yet the husband will, in such case, be bound to restore the deposit to the depositor, if it is in his possession. (Story on Bail., § 50 ; and see 2d Sand. Rep., 47, b, note f.) So a
It is clear that the defendant could not, upon any obligations arising out of the deposit or bailment, be held to bail under the Code. By changing the form of the action involving a different remedy, the rights and liabilities of the parties are not changed. The liability of the defendant to answer "to the plaintiff arises out of the contract of deposit, and the contract being void, no action at law or equity will lie upon it. So far as the plaintiff can trace his property, he may recover it, or if it is represented by the bond and mortgage of Johnson, that may be reached, but not in an action against this defendant alone. The
The writ must be discharged, with costs of the motion to defendant to abide the event of the action.